Monday, February 27, 2017

Still Waiting for a Transgender Superman by Jonathan Glater

Now that the Trump Administration has explicitly disavowed guidance to schools on treatment of transgender students, it is worthwhile to revisit exactly what lawyers for the Justice Department and the Education Department wrote way, way back, last May, in a now-distant era.

Last year’s guidance – which is accessible on the Web site of the Education Department – addressed the meaning of the nondiscrimination language contained in Title IX of the Education Amendments of 1972, 20 U.S.C. §1681 et seq.  The law states:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

This kind of nondiscrimination language in other contexts, most notably employment, has been interpreted by courts as prohibiting differential treatment based on gender identity.  (The law includes several exceptions for specific institutions and organizations, like the Boy Scouts.)

If the prohibition has this same meaning in education, then it bars schools, colleges and universities receiving federal money from treating transgender students and other students of the same gender identity differently.  For example, to require a transgender student to use a locker room, rest room, or other school facility designated for use by students of a different gender identity would run afoul of Title IX. 

Now, I mentioned that courts have found gender identity-based discrimination to constitute sex discrimination “in other contexts,” and that is because the cases cited by the two departments in the guidance did not involve Title IX – with one exception.  As discussed in more detail earlier in another post, the Supreme Court will hear oral argument next month in Gloucester County School Board v. G.G., and that case is the exception.

Gloucester County does not directly or expressly raise the question of the meaning of the nondiscrimination language in Title IX, although the Court could resolve that issue for practical purposes.  Rather, the Court ostensibly will rule on the extent to which the Obama Administration’s guidance should benefit from judicial deference, as it did in the opinion of a federal court of appeal.  The Fourth Circuit cited the guidance in issuing an injunction requiring that a transgender boy be allowed to use the boys’ restroom at his school.

The question of deference is an interesting one, given that the guidance was not the product of formal notice and comment proceedings.  Perhaps that is the reason that Sean Spicer, the White House’s press secretary, spoke about the Trump Administration’s view of the guidance as he did.  In responding to questions from reporters about the Administration’s policy, Spicer spoke of “several areas of concern, both legal and procedural,” involving the guidance.  He did not offer further detail on what those areas were.

Significantly, the Obama Administration’s guidance did not and does not “add requirements to applicable law, but provide[d] information and examples to inform recipients” of Federal funds about how the two departments will evaluate “whether covered entities are complying with their legal obligations.”  So the obligation of schools to respect the rights of their students has not changed from whatever it was before.

But the likelihood of a federal effort to protect those rights has.

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